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	University of NSW Law Journal

Australia is one of the world's success stories as a sustainable democracy. As we approach the centenary of our national political identity in 2001, it is important to keep alive the political faith in the means as well as the ends of our form of political association, with its commitment to continued democratisation. It would be false to that political faith to think that our 100 years of democratic government meant that the cause of constitutional reform can be settled once the issue of a republican head of state is disposed of. The Constitutional Convention brought home the fact that the question of a republican head of state is urgent but not necessarily as important as many other reforms to our democratic processes. With hindsight, we might come to see that many of the `lost causes' of the Convention - for example, a bill of rights and the frustrated agenda of the so-called `real republicans' - subsequently surface as the real winners. In this way, the Convention will have done its fair share to put democracy back in pride of place as we approach the referendum on a republic.

Many nations around the world are searching for working models of sustainable democracy and Australia should have many lessons to offer.[1] But the institutional qualities of our self-government depend very much on the qualities of our political self-confidence. Are Australians really confident that a republican head of state can improve our democratic ways? I think that the Convention can remind Australians that democracy is a way of life embracing civic participation rather than a form of words consigned to a Constitution. Constitutional reform should be seen as an instrument for democratic development. A written Constitution can be of immense help to a democracy, particularly if the people are encouraged to play their part in the political life of what now goes by the name of sustainable, or to use a more general term, deliberative democracy. That is, a democracy of public deliberation rather than private deals, where public participation and open argument curtail private influence and backroom deals.[2]

Most reviews of the Constitutional Convention have focused on its outcomes and on the Howard government's careful management of the Convention's call for a referendum on the republic. I want to focus on the process values of the Convention and try to put them in a broader context than simply the Australian debate over a republican head of state. The Convention was an important illustration of Australian democracy at work. An assessment of the worth of how the Convention went about its work can tell us much about the strengths and weaknesses of democracy in Australia.

My contention is that the Convention was a success in showing up weaknesses in our routines of parliamentary government. The remarkable popular interest in the Convention illustrated the democratic hunger for a more nutritious political diet than is normally provided through Parliament. As a process, the Convention proved valuable as an example of what can be achieved through wider community consultation over the agenda of government and closer public participation in government decision-making. I remain sceptical about the enduring qualities of the final recommendation for the so-called `bipartisan appointment model'. Accepting Brian Galligan's critique of that model,[3] I go further and argue that the final recommendation gives back in substance too much of what the Convention had already claimed procedurally - that is, the right of Australian citizens to be more closely involved in the res publica, particularly in the public processes relating to the selection and dismissal of the head of state.

At the end of the day, a sceptical Prime Minister has won a victory that promises to make an Australian republic safe for the prevailing interests dominating Australian parliamentary government. The preferred option leaves most of the crucial decisions in the hands of the ruling prime minister, who alone may nominate the president and who alone may dismiss the president. True enough, the nomination must be approved by a two-thirds majority at a joint sitting of both houses of Parliament and a dismissal must be ratified by a majority of the House of Representatives within 30 days of the dismissal. Thus a conservative prime minister has the prospect of bringing home Labor's minimalist bacon. But this comes at some risk. The real sleeper in the debate over the republic is, as David Solomon suggests, the people's interest in `having a greater say' in Australian government, with the choice of president a kind of proxy for a deeper agenda of reform along the lines of more open and representative government. To leave these issues unattended is to risk a wholesale realignment of the deliberative process in Australian government.[4]

The Constitutional Convention was an unusual example of public participation in Australian government. In its original concept, it sparked refreshing community interest in opening up the processes of government decision-making to wider public input. But in its final form, the Convention fell quite short of the `People's Convention' as originally proposed by John Howard when leader of the opposition, drawing on an earlier proposal by his predecessor, Alexander Downer. John Howard justified his Convention as a way of broadening the agenda of constitutional change from the head of state to "other issues of great constitutional significance" such as parliamentary terms, Commonwealth-State relations and the "allocation of legislative and executive powers".[5] Sadly, the Convention was given a much narrower brief which pushed to the sides any constructive deliberation on related issues of democratisation and constitutional modernisation.

The structure of the Convention limited its procedural autonomy in a number of basic ways. Most attention thus far has been directed to the government's experiment with voluntary voting which is a marked deviation away from the historic norms of Australian electoral practice, where compulsory voting has been part of the law of the land since 1924. The bill to establish the Convention aroused considerable parliamentary interest and was the subject of an inquiry by a Senate committee, where a government majority supported the government's decision on voluntary postal ballot on the basis that after all the Convention was not a real parliament because it had only advisory powers.[6]

Another unexplored issue is the fascinating friction within the Senate committee over the role assigned to the Convention's presiding officer. This internal dispute over the role of the on-field umpire illustrates the way that the Convention is capable of reinforcing the momentum for institutional reform to the national Parliament. Although the government majority made no reference to the position of presiding officer, the minority Labor members raised doubts about the real independence of the post. Government suggestions were that the job should go to a serving Government MP. The Labor minority mounted a case that the Convention post should be one of genuine independence and recorded their support for the Leader of the Opposition's proposal that the former chief justice Sir Anthony Mason be approached.[7] The fact that a major political party looked to a prominent judicial figure serves to highlight the need within the national Parliament for presiding officers of independent standing.

The well-regarded performance of Ian Sinclair as the Convention's presiding officer became something of a standard for judging the performance of speakers of the House of Representatives - so much so that Prime Minister Howard offered the speaker's job to Sinclair at the first vacancy soon after the Convention. But media comments suggest that even Speaker Sinclair's conduct is being judged as below the performance of his role as Convention presiding officer, as though the institutional constraints of the House of Representatives are an obstacle to the institutional deliberation he promoted at the Convention. Odd as it sounds, Speaker Sinclair is being judged against the standards he himself set so well when in the chair at the Convention. Putting personality to one side, this indicates that there is something wrong with Parliament's institutional incentives for personal performance when a presiding officer falls so short of a `personal best' demonstrated to all the world at the Convention.

In the weeks leading up to the Convention, a number of elected delegates tested the limits of their procedural autonomy. The government had already appointed former National Party Minister Ian Sinclair as the non-voting presiding officer, with Labor's national president Barry Jones as his deputy. Three rules related to decision-making stood out: first, the right of the Convention to elect its own presiding officer; to determine its own agenda of business; and to determine its own rules of procedure. The opening sessions of the Convention showed that only the third of these decision rules was in the power of the body of delegates. The government held fast to its strategy that the Convention had the limited role of meeting to discuss and provide advice on three main questions: Whether Australia should become a republic? If so, which model of a republic should be put to voters? And at what time? Much of the debate, and indeed the final Communique, strayed beyond these narrow confines, as a kind of proof that particularly the popularly elected delegates would not be prevented from raising a wider range of issues for constitutional change.

One fresh way of seeing the 1998 Constitutional Convention is in terms of the concept in political theory known as deliberative democracy.[8] This is a new term to describe a very old idea. Democracy has long been known as the rule of the people, even though very few democracies encourage popular participation beyond the important formalities of periodic elections. The democratic idea reaches well beyond the use of elections and plebiscites to gauge public opinion. One of the purposes of constitutional government as it was devised by the founders of modern representative government was to protect popular government against the tendency to degenerate into populism or any of the other varieties of majoritarianism. Among the primary means to this end were institutions to promote norms of due process and due deliberation in government decision-making. John Stuart Mill, for instance, was one of many forceful authorities who defended the role of parliaments as `talkshops' - so long as the parliamentary procedures facilitated open dialogue and genuine political deliberation as distinct from set-piece theatrics.[9]

There is now a growing social science literature on the theory and practice of deliberative democracy examining different forms of public decision-making to test their deliberative capacities, with an eye to improving those capacities.[10] One important lesson is that many political decisions are flawed because they are made within institutions suffering from a deliberative deficit, where: (i) too many decisions are made by (ii) too few people in (iii) too little time on the basis of (iv) too little information. Although there is no single model of due deliberation, the basic properties of effective deliberation stand out from this list of four deficiencies. The core of effective deliberation is due consideration of the issues, which means appropriately weighing all relevant matters before arriving at a decision. Political decisions usually have plenty of calculation but only a minimum of consideration, in the sense of weighing up options so that an appropriate range of decisions can be made on the basis of adequate consultation, time and information.

Perhaps John Howard had a good sense of the deliberative deficits of the Australian Parliament when he decided that greater public participation might enhance the political debate on the republic. In general, it is rare for parliaments to live up to their reputations as deliberative assemblies, and the deliberative deficits of the Australian Parliament in particular are there for all to see.[11] It is just possible that one of the achievements of the Convention will be to throw the light of publicity on to the obstacles within the Australian Parliament that stand in the way of enhanced deliberation. Think, for example, of the advantages that the Convention had as a result of its targeted representation of Indigenous communities, of selected youth delegates, of working women, and of church leaders, and of its series of small working parties where these cross-sections could talk through and report back on the issues.

The Convention's final Communique noted the "wide participation by delegates" in what developed as robust debate characterised by "a strong spirit of civility and compromise". One can see in this Communique the seeds of mounting community interest in conventions as a device for deliberative politics. Prime ministers may not be capable of restraining this popular tide of interest in greater participation in government decision-making. Indeed, the Communique makes it clear that the Convention was a creature of Parliament as much as the Howard government and that its recommendations were being directed "to the Prime Minister and Parliament".

The Howard government is yet to work though the Convention's strong recommendation that the nomination process involved in the preferred option for the new head of state be designed "to ensure that the Australian people are consulted as thoroughly as possible". The Communique boldly stipulates that "this process of consultation shall involve the whole community". One can detect in this support for greater public participation in government decision-making the dramatic effect of the Convention's two weeks of lengthy deliberations. These deliberations must have brought home to delegates the importance of taking the public into the government's confidence on such a fundamental issue of national sovereignty as the republic.

Thus it comes as no real surprise to find that the Communique contains a direction to the government that prior to the holding of the referendum it "undertake a public education programme directed to the constitutional and other issues relevant to the referendum". The Convention might well provide the trigger for a series of fresh experiments in Australian political education, especially if Parliament keeps the government accountable to the spirit of this general recommendation on civics education. It might well be that one effect of the Convention's call for greater public consultation by government will be the introduction of State conventions to discuss the local impacts of any national change. This is certainly consistent with that other recommendation in the Communique in which the Convention calls on the federal government and Parliament to "extend an invitation" to State governments and their Parliaments to consider their participation in any Commonwealth changes to a republic.

Where will all this call for consultation end? One answer is suggested by the Convention's recommendation about where the Constitution should begin - with a new Preamble which endorses "ongoing consideration of constitutional change". If the Howard government overlooks this, Parliament will remind it, and if Parliament fails to act then the interested publics which have been mobilised by the Convention will not be slow to step forward. After all, the Communique concludes with a recommendation that between three and five years after the beginning of any new republican system of government, another constitutional convention should be convened comprising not half but two-thirds directly elected by the people, with a charter that explicitly includes "ways to better involve people in the political process". Thus the greatest legacy of the Convention might be the permanent acceptance of conventions as an additional device of deliberation in the Australian political process.

The Convention was a wake-up call for public participation in Australian politics. The government and Parliament are well-advised to heed the warnings coming through the Convention that tidy deals within the political elite will do nothing to satisfy the growing public hunger for a greater say in how Australia is governed. Parliament might remember the words of John Howard when as Opposition leader he responded to prime minister Keating's minimalist option with his acknowledgment that the public feel that politicians have "shut them out of the process".[12] Remember also that his original agenda of Convention business included the "allocation of legislative and executive powers" as one measure of his acceptance of community interest in opening up the deliberative process to regular public participation. Participation alone does not enhance political deliberation, but then again neither does a republican head of state. Effective democracy requires a realignment of the head and body of Australian politics and the Convention has at least begun that task. Despite his misgivings about the republic, John Howard has given us in the Convention a new device for invigorating Australian democracy. After all, who could disagree with a prime minister who is on the record with the declaration that "there cannot be too much democracy"?[13]

[*] Public Policy Program, Australian National University.

[1] A Przeworski, Sustainable Democracy, Cambridge University Press (1995).

[2] J Bessette, The Mild Voice of Reason: Deliberative Democracy and American National Government, University of Chicago Press (1994); J Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament, Cambridge University Press (1998), pp 3-31.

[3] B Galligan, "The Republican Model" Quadrant, April 1998, pp 17-21.

[4] D Solomon, Coming of Age: A Charter for a New Australia, University of Queensland Press (1998), pp 1-17.

[5] Australia, House of Representatives 1995, Debates, vol HR **, pp 1623-4. Hansard (8 June, 1995) House of Representatives, 1623-4.

[6] Report of the Senate Legal and Constitutional Legislation Committee, Constitutional Convention (Election) Bill 1997, The Senate, May 1997, p 10.

[7] Ibid, p 43.

[8] J Bohman and W Rehg (eds), Essays on Deliberative Democracy, MIT Press (1997); J Uhr, note 2 supra.

[9] See for example, B Manin, The Principles of Representative Government, Cambridge University Press (1997), pp 183-92; J Uhr, note 2 supra, pp 9-19, 70-4.

[10] See for example, J Bohman and W Rehg, note 8 supra.

[11] See for example, J Uhr, note 2 supra, pp 233-47.

[12] J Howard, Hansard (8 June, 1995) House of Representatives, 1624.

[13] J Howard, Hansard (8 June, 1995) House of Representatives, 1625.